Court victory for woman "held prisoner and denied fair trial" by council

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Court victory for woman "held prisoner and denied fair trial" by council

8th February 2013

In a landmark court hearing, a local authority has admitted violating a vulnerable pensioner’s Human Rights to a fair trial, to liberty and her right to enjoy a family life, in order to keep her at a psychiatric home against her will.

The woman, who cannot be named for legal reasons, was unlawfully detained by Knowsley Metropolitan Borough Council after an earlier order under the Mental Health Act had expired. The Council applied to the Court of Protection and obtained an order, but the woman, her family and her appointed advocate were not informed about the application, thereby denying all concerned any rights to make an argument to the Local Authority or the Court for her return home.

On Thursday (7 February), Mr Justice Peter Jackson, a senior High Court Judge, approved an Order in the Court of Protection sitting in Manchester in which Knowsley Council admitted violating the vulnerable woman’s inalienable right to a fair trial, and that by their actions had also violated her right to liberty and her fundamental right to a family life.

Mark McGhee, a specialist in Human Rights and Community Law issues, is representing the woman. “Throughout my time of practicing law in the Court of Protection, this is the first time I have experienced a case where a local authority has been found by admission to have violated someone’s right to a fair trial under Article 6 of the European Convention on Human Rights,” he said.

“For around two months my client was held against her will in a home, in circumstances she described as ‘tantamount to being in prison’.”

Mr McGhee, a partner with Fentons Solicitors LLP, explained that his client had originally been detained under the Mental Health Act after being admitted to a psychiatric hospital in late 2011. She was then transferred under section to the psychiatric home.

“The home where my client was placed was a locked environment,” he said. “My client’s detention was due to expire on 24 May. At that time my client was fully expecting to be able to return to her own home. However, unbeknownst to her a  decision was made – without any input from her, her family or her advocate – where the Council determined that they would apply to the Court of Protection to extend her stay at the home.”

Mr McGhee said the fact his client or her representative were not involved in any significant decisions about her case during the weeks before the expiry of the original order under the Mental Health Act, was in itself as his client claimed, a serious breach of proper procedure. “The law makes clear how  ‘best interest’ decisions of this nature need to have the input of the individual involved, their family and any other interested parties,” he said. “Instead, the Council to all intents and purposes excluded these key individuals from the decision-making process.

“In order to obtain a new Order, Knowsley Council made an application to the Court of Protection on 24 May last year,” said Mr McGhee. “But they did not notify my client of the hearing, they did not pay any attention to the representations from her mental health advocate, they did not engage with family members and by failing to do so, they denied my client her European Convention rights.

“Had the Council ‘played by the rules’ as my client contended, she could and would have been able to put forward her case,” said Mr McGhee, “namely that the Authority’s application was ill-conceived because she always had capacity and they had not complied with due process. If successful, my client would have been returned home.”

Instead, the Local Authority obtained an Order from the Court of Protection, the effect of which was to continue to detain the elderly lady at the home against her will.  During this time she had no meaningful communications with other residents, and she was denied the opportunity of visiting her husband frequently. She was isolated, spending most of her time in her room, and she was allowed out of the home, with supervision, initially for just nine hours per week.

“To use my client’s own words, ‘category A prisoners get more time outside than that’,” he said.

Mr McGhee became involved when he was instructed by the woman’s family to attend a Court of Protection hearing with just 48 hours or so notice, to review the case.

“As soon as our investigations started I became concerned about the circumstances of my client’s placement, and the Local Authority’s compliance with basic procedures,” he said. “As time went on, the Council admitted that they had violated the vulnerable woman’s rights under Article 5 and Article 8 – relating to liberty and family life respectively – but in addition and somewhat unusually they also admitted violating her Article 6 rights to a fair trial.”

Knowsley Council accepted that its conduct had fallen well short of the standards required under the Mental Capacity Act Code of Practice and the Deprivation of Liberty Safeguards (DOLS), and that it lacked appropriate regard for due process.

“I have never come across a case such as this, where a Local Authority has admitted to violating an individual’s right to a fair trial in this way,” said Mr McGhee. “My client contended all along that no detailed assessment of her mental capacity was ever carried out after November 2011, so the impression given to the Tribunal in March 2012 and to the Court in May 2012 was deeply flawed.”

Mr McGhee said it was only after he and his client’s mental health advocate intervened that the Council reviewed its position and carried out further assessment of his client’s mental capacity and her ability to manage at home. “Of course, she passed these with flying colours and immediately the Council began to change its stance,” he said. “She was allowed to return home on 18 July, and just a week later she was assessed by a specialist occupational therapist as being independent and as having ‘a high functional ability slightly above average for a woman of her age’.”

Speaking about her ordeal, the woman at the centre of the case said she had been left devastated by her experience. “I was held prisoner, it’s as simple as that,” she said. “Even though it’s been months since I was able to come home, I still can’t sleep.

“I feel like I just can’t trust anyone. I’m constantly worried that they’re going to turn up and take me away again.”

Mr McGhee said that the Council had agreed to pay his client a total of £6,000 in compensation for their Human Rights violations, in addition to a declaration that they violated her rights to liberty, fair trial, equality of arms and family life. A separate civil claim is pending for the psychological damage sustained by the vulnerable woman during her incarceration.

“In addition, the Local Authority agreed to set up an independent inquiry in accordance with the terms of a Serious Case Review,” he said. “Following this hearing we will now be reporting individuals to the relevant authorities, and asking for a referral to be made to the Equality and Human Rights Commission, requesting that they use their powers to investigate the Council and its actions.

How can Fentons Solicitors help?
Fentons Solicitors has a specialist department helping people affected by Human Rights and Community Care issues.

For a free, no obligation discussion to discuss how we could help you, call our freephone helpline on 0800 019 1297, or complete the brief Community Care Enquiry Form.

Meda coverage of this case - Independent, Liverpool Echo